Your basis of argument relies on the faulty premise that one is resisting the legislature or executive branches of "strategic" government. In this era, the US police and Army are held in high esteem due to their high levels of professionalism and moral integrity. They are cast in a heroic light, and rightfully so. However, this is not a permanent condition, or even one that I would say is common. It will only be a matter of time before that assumption of trust you take for granted alters. My right to bear arms is related to my inalienable right to self defense... from any criminal element... elected or not.

The difference between gun owners and yourself is that we look to ourselves as our first line defense, while you look first to the police and government. We do not take that trust for granted.

No wonder the U.S. has such a high rate of firearm-related deaths. This kind of paranoia fuels every trigger pull. If you don't trust your local government, complain, campaign, or just relocate. Take action. Don't just hide in the shadows with your rifle, waiting to fire at the first person that opens your front door without knocking.

The author highlights the statements of Justice Scalia in order to frame the most important issue concerning the second amendment: People misinterpret it and fail to realize that the militia in the 1700s does not equal the militia in the 2000s. Aircraft, computer-guided weapons, corporate media all did not exist back then.

Here's a hypothetical situation: Say your local police station abusing you and your neighbors. They begin to threaten you with firearms and you retaliate by drawing yours. A fire fight is initiated by someone. Finally, you and your neighbors eventually wipe out the entire squad. What next? You and your neighbors eventually make it to national headlines: "Neighborhood Cult opens fire on local policemen." Now you're the target of the National Guard, ATF, and FBI, who have ways of neutralizing you without ever being seen.

According to Justice Scalia, modern day militia need more powerful firearms to be considered a formidable opponent against a tyrant. Whether or not you're concerned more about national tyrants than you are about local policemen isn't clear, but ultimately you're not likely to start any uprising with a rifle.
To play the devil's advocate, I don't think any firearm is as powerful as national media.

Curiously, I seem to recall reading something in a couple of weeks ago in this very newspaper about how the Saudi security forces had failed to execute an arrest warrant for Sheikh Nimr al-Nimr for three years because "some households" in his town of 25,000 were believed to possess weapons smuggled in from Yemen and Iraq. Evidently, the deterrent effect of an armed populace is not entirely non-existent.

Coming from the sardonic enfant terrible of the court, Scalia's consideration of less asymmetry between the McVeigh crowd and black helicopters of tyranny was a quip. If the court had to decide, I wouldn't expect a close decision.

Back in 1948, when Israel declared independence, its 600,000 citizens were _much_ less well-armed (on average, or in total) than 600,000 random American civilians today. The Arab armies moved in next day to "exercise sovereignty". We know what happened next ...

What happened next? That the West decided to hook up Israel with no strings attached weapons and even let it develop illegal nuclear weapons to beat back the Arabs? A policy that continues to present day?

As a global comment on this discussion it should be noted that the right to bear arms has both symbolic and practical value. I no longer has the practical value of giving the citizenry an effective counter force to a hypothetically oppressive and better armed government.
But there remains the power it provides of making the price paid for oppression by the hypothetical rougue government very much higher than otherwise.

The nature of government has changed in the last two centuries but the human propensity to abuse whatever power they manage to aggregate has remained.

Where has such a situation where a people have resisted a government resulted in anything less than a large death toll amongst the people resisting?
Only situations where I think change has occured it has been due to other forces, or has occured with outside intervention.

History abounds with examples. I had an earlier post listing several. But Phaedrus32's point is simply that an armed citizenry changes the government's calculus with regard to oppression. When a government does a cost-benefit analysis of a particular law, an armed citizenry is taken into account as a potential cost. Admittedly, it must be taken into account as a cost in only the most oppressive of laws and regimes, which we have yet to see in the United States.

When people engage in armed resistance against their existing government, that is what is generally called a "civil war". All civil wars have terrible death tolls. That does not mean that civil wars do not have positive results for one side or the other. It may not be the option of first choice, but history shows that sometimes it is the option of last resort, and that it has a tendency to work.

You don't even have to go back as far at the American or French revolutions, or the American Civil War. The Viet Minh fought the French, Mao Tse Dong fought the Kuomintang, SWAPO guerrillas fought the South African army for the independence of Namibia, and the South Africans themselves used violence in fighting against their aparthied government. You can debate whether the IRA accomplished anything constructive with their armed rebellion against Britain, but the two sides seemed to have gotten tired of burying their children and used this to spur a negotiated way out of The Troubles.

A Brit, so bear with my ignorance but...
Surely the US has a well regulated militia in the National Guard. Requiring those who want to bear and keep heavy arms to do so in a secure militia-controlled armoury might work. Would that be consistent with the constitution?
My guess is that the amendment's intent was to provide a local, i.e. state level counter to federal military power. So, make the National Guard/Militias state level entities outside the federal system.
But the problem is Scalia in a judge, not a lawmaker. He can't change the law or the constitution and is constrained to interpreting it and is trying to do so honestly. Is there a mechanism for the judiciary to refer a law back to the legislative branch and request clarification? Maybe there should be.

The answer to your first question is "no", both from historical and legal precedent. The answer to your second question is also "no". The federal courts in the US cannot issue advisory opinions as they can in, say, Australia. Our system is strictly adversarial so the courts can only issue rulings on particular cases, and those rulings establish precedent. Advisory opinions or requests for clarification are not strictly unconstitutional per se, but the precedent against them was established centuries ago and would be difficult to overturn. This is especially true in today's political climate in which every word uttered by a judge is "legislating from the bench".

i havent read through all the comments here, so forgive me if i'm repeating what someone else has already said. it seems really important to note that if this article is correct, then at least one very important part of the constitution is horribly out of date. the whole thing might need to be rewritten, but i don't think we can manage that without something terrible happening.

Consider alternatively a minority group that decided that the 'Jim Crow' laws being brought into demand photographic ID before being able to register to vote, and which made getting such ID extremely difficult for them, decided that such a move constituted 'tyranny' on the part of the government.

Are the 'right to bear arm's' advocates saying they would be happy with the Black Panthers to stock up on weapons, and then attack the organs of the state in order to regain their 'freedom'?

All of this illustrates how anachronistic, absurd, and inconsistent a literal interpretation of the 2nd Amendment actually is. As pointed out below, why shouldn't I be allowed to pack my Glock onto a domestic flight: "If the Nation's commercial aircraft had been full of armed Patriots, 9-11 would have never happened ..." But even the NRA is not foolish enough to go there.

We restrict guns on aircraft because it is an exercise of commerce clause authority (interstate travel). And it should be noted that we do not prevent firearms from being transported on a commercial airline -- you can pack unloaded and declared weapons in your checked luggage. You just can't carry them on your person or in your carry-on. Appropriate time-place-and-manner regulations on firearms would likely pass Constitutional muster.

I certainly agree, which is why they shouldn't be allowed in bars either. And does the NRA, and other radical gun rights advocates, accept the Interstate Commerce Clause Exception to the 2nd Amendment?

It is not an "exception", it is a permissible form of regulation, just like we can have reasonable time-place-and-manner restrictions on the exercise of free speech under the 1st Amendment. The 2nd Amendment is not a categorical prohibition on any form of gun regulation, it merely protects against outright bans, or excessive regulation that functions as a ban (i.e. it prevents the government from regulating it out of existence). However, a state could easily require registration of firearms, or prohibit concealed-carry without an appropriate permit, or prevent firearms in public schools, etc.

"...letting Americans own the only kinds of weapons that actually make sense, under the dominant justification that advocates currently provide for the importance of gun rights: the right to defend yourself against the government..."

I have not finished reading, yet, but this is the gaping flaw in the current gun-rights logic. When the founders considered this, guns took 30 seconds to load and fire and were accurate to maybe 200 yards. Militias could hope to fight regular armies. Today, we at best, might overrun an armory and hold the fear of assassination, but could not hope to confront the force of the military. It is a farse and they know, but will not cede.

To make the matters worse (from the gun-rights logic viewpoint), Mahatma Gandhiji has conclusively demonstrated that unarmed but determined citizenry can not only defend itself against but also drive from their home territory an occupying military power. In this modern age, citizens do not have to even be armed to defeat tyrannical governments, because massive armed suppression of popular dissent has become a pretext for an unwelcome (from the tyrants' viewpoint) foreign intervention.

I am certainly no scholar on India, but did they drive an occupying military or a colonial master out? I personally do not currently own a gun, but I have in the past and will again. From what I read, Libyan and Syrian citizen have arms. Although, we citizens of the US could not face the military directly, politicians cannot just ride over us. The threat of assassination looms, but sadly, and to the point of pragmatic restrictions necessary to advance a civilized society, that threat has been severely misused. I disagree with the subsequent assertions of the blog author; armed citizens are necessary. When a government is no longer armed, then the citizen may follow.

"I am certainly no scholar on India, but did they drive an occupying military or a colonial master out?"
Yes. Their civil disobedience campaign was so effective that it made Britain hanging on to India economically unviable (Their ROA became negative), resulting in a negotiated pull-out. Concerted and determined civil disobedience campaign can bring a country to a standstill, and imprisoning or shooting dissidents won't get them back to work.

"Get back to work, or you will be shot."
'Oh yeah, shoot me and who's gonna do my work?'

While rethinking the meaning of 2nd. amendment terms into the modern world don't overlook the modern version of
tryanny" Our freedom no longer faces the tyranny of a dictating military commander but we do face the tyranny of a system controlled by those with stockpiles of money. A stinger missle won't protect our national equity.

I hope that people and the TE give a consideration to the below thought.
When members of a 'Minority' community start buying and stacking guns in US, the arguments will certainly change.
God forbid, if they make a 'militia' to stand against the state.

Funny that you mention it, but it did happen. Actually, it was progressives, the likes of M.S., who promoted the idea that the right to bear arms had to do with self defense rather than, say, Guard militia, and they did it through 14th Amendment, and rightfully so.

After the civil war, Southern States liked to lynch blacks a bit too much, and discriminated against them in any way possible. Because blacks couldn't get justice in white dominated South, arming them against abuses of state governments was the best option available.

"We can see something of a problem begin to develop here. Reasons one and two above are obviously anachronistic: militias composed of private gun owners are no longer useful in repelling invasions" Tell that to Somalians, Iraqis and Afghans!

So in essence your argument is that private gun owners in the USA selling large quantities of opiates or other harmful drugs and using the proceeds to buy heavy weapons from the Russians will keep us safe from Tyranny ?

Au contraire, bradshsi - I think the gun laws in the US are mad and your rationale is slightly off. I was merely pointing out that the might of governments are not always what they seem; a low tech well motivated militia can be a match for a centralised military commanded by a government without stomach for the fight, be it British, Russian or American or Martian. Thanks too for the job recommendation, but may fail as a limp wristed, peaceloving metrosexual, pussy non Texan, lol;-)

The Iraqis and Afghans are not resisting the invasion; they are resisting the occupation. The fact that they're currently occupied proves their resistance to the invasion was not effective. Considering how many US and allied soldiers have died in both of those places, their resistance to the occupation, on the other hand, has been quite effective. One does not need to repel an occupier through overwhelming military force, as in an invasion, but rather through slowly chipping away at the occupier's resolve. This favors the defense, even when that defense is armed only with small/light arms.

Part of it says that a well-regulated militia is necessary to suppress insurrections, among other things, as well as a defense against possible government tyranny. So, it is the militias who would have to put down some possible insurrection, lest the regular army become too tyrannical.

And the problem with that is?.. Look, anybody who's rich enough to buy any of this stuff legally will not be a problem - they'll have too much to lose to go shoot random people. And if murder by drone is your thing for some reason, you can buy one on the international black market. Even stupid cartels have their own submarines etc.

The thing that amuses me about liberals is they believe that political class and national security apparatus should have monopoly on violence when throughout history, political class and national security forces have been responsible for unimaginable atrocities and their victims run in the hundreds of millions.

But no, we should ignore all that and be afraid of orange haired kid with a rifle who can't even shoot well. Be very afraid! Or.. Somalia! Which, by the way, was devastated by decades of socialist rule (the very same political and national security class I was complaining about) and has tribal divisions that guns may well help balance out (see Rwanda for what happens with unarmed tribes).

So by 'balancing out' you mean they might kill enough of each other (and anyone who gets in their way) that a solution will be generated through lack of anyone to fight with?

I can see where this could lead. We could see heavily armed Democrats/Liberals taking on heavily armed Republicans/NRA members in a bid for the Presidency. Sure, the use of nuclear weapons may be a little over the top, but doing the opposite (no first use) is just the kind of namby-pamby wishy-washiness that we can all do without, and who cares about the death toll?

It will put that orange haired kid who went nuts with firearms no sane nation on the planet would have let him near, and who went nuts with them and killed a whole bunch of people, back into perspective!

By balancing out, I mean they don't go on genocidal rampage with machetes.

The rest is hysterical nonsense. Last I checked, despite widespread gun availability, violent crime is declining. We don't have Republicans gunning down Democrats on the streets, or vice versa. Likewise, last I checked, it was the government that used nuclear weapons on civilians and killed a bunch of people, not private individuals. So why do you trust the government, which has a record of nuclear violence, over private citizens, who don't?

Anyone who has seen the Royal Tournament in London will know that 'bearing' cannon over walls, albeit in pieces, is a standard trick. So does 'bearing' arms mean only arms that can be effectively fired whilst hand-carried? (should exclude .44 magnums) or should one amend the constitution to say 'individually borne' arms - if so why? Surely this is about forming militias - and one red-haired nutcase hardly constitutes a militia!

I think if you knew Scalia's rather sardonic sense of humor, you might guess that he was messing with Chris Wallace's mind a bit. Nevertheless, if you look back in history, privately owned merchant ships often had small cannon for protection, so there is some precedent for the idea that private ownership of light artillery was not unheard of at the time of the drafting. However, most individuals probably could not afford a field cannon back then, and those who could afford it probably never bought one (after all, who would you use it against?). There were examples of privately raised regiments during the Civil War, but most heavy weapons were purchased and used by state and federal governments.

"So does 'bearing' arms mean only arms that can be effectively fired whilst hand-carried?"
That depends on whether you permit use of bipods when firing. If bipods are allowed, that will qualify anything up to heavy machine guns (like MG42) or 20mm Anti-tank rifles under the phrase 'bearing arms'... :P

"Mr Scalia's claim here is that modern technological developments have rendered the second amendment meaningless with regard to its original intent, but that we have to continue enforcing it unchanged, regardless."

Dear M.S. - my two cents:
Its the job of the law-makers (Congress & Senate) and of citizen's at large to update the constitution and bring it up to date with the modern world. If the government and citizen's of the US cannot update the 2nd amendment to reflect current realities, the Supreme Court has no business doing so. To that extent, Scalia may be justified in his opinion.

Maybe if the S.C. ruled that shoulder-fired missiles are legal under 2nd amendment - that would finally force Congress to take action (just kidding, of course.)

An addition to the above - Scalia repeatedly uses the past-tense, phrases like "was thought to be" and "at the time of the Second Amendment’s ratification".
It seems that he also believes that the 2nd amendment is hopelessly out of date - BUT that his hands are tied until citizen's and law-makers update the 2nd amendment.
Why is it that no law-maker or guns-control group has proposed a meaningful, NON-PARTISAN update to the 2nd amendment? Maybe because while the NRA devotes tremendous resources to lobbying law-makers, the gun-control groups sit back and wish that SCOTUS would do their job for them.

"Why is it that no law-maker or guns-control group has proposed a meaningful, NON-PARTISAN update to the 2nd amendment?"

Because there is no such thing as non-partisan politics, especially regarding guns. You can keep hoping for that right alongside hoping that your long-lost recently-deceased uncle made you sole heir to his billion dollar underwater basket-weaving empire.

"Maybe because while the NRA devotes tremendous resources to lobbying law-makers, the gun-control groups sit back and wish that SCOTUS would do their job for them."

What on Earth makes you think that? Gun control advocates lobby like crazy right alongside the NRA. SCOTUS virtually never hears 2nd Amendment cases, and when they do it rarely results in a groundbreaking, surprising, interesting or even particularly meaningful decision. I'm sure lots of people on every side (there are, frankly, more than two) wish that the Supremes would use their legal genie powers to give them what they want, but anyone who is counting on it is a complete fool.

"Maybe because while the NRA devotes tremendous resources to lobbying law-makers, the gun-control groups sit back and wish that SCOTUS would do their job for them."
Sorry, yes that was bit of over-reach on my part. I am sure there are lots of committed gun control advocates that work really hard within the system to counter the gun-nut lobby. My sincere apologies to them.

Basically there are two extreme camps - one that would like to ban all private gun ownership and another that would basically like to be able to order AK-47s over the mail.

By non-partisan, I meant to say - a reasonable compromise solution. Something that puts meaningful controls on gun ownership without seeking to make guns outright inaccessible to citizens at large. This could either be regulations that are acceptable within the 2nd amendment or reasonable changes to the 2nd that would modernize it rather than seeking to repealing it outright.

If anything that can be held and aimed by hand is fair game under the Second Amendment, what about a grenade? In fact, what about a bottle of sarin? :P
Also, having a veritable arsenal didn't help the Branch Davidians one bit when it came to resisting the government... :P:P
It is high time the Americans realize what matters when resisting tyrannical governments is the NUMBER of people resisting, not whether they are armed at all. If a million unarmed but determined people decided to march against the White House, nothing short of a tactical nuke can stop them.

In Afghanistan AND Iraq, people fighting a "modern" army did and are doing exceptionally well fighting a "perceived" tyranny with just AK-47s, fertilizer, and patience. The argument that citizens need modern weapons to fight a government is inaccurate.

well it doesnt take a lot to defeat an army composed of overweight people who can barely walk and 30% of them are myopic and require corrective eyewear.Id like to see afgans or arabs trying their luck with a SS division or two

I used think along the lines of M.S. In politics, a whole spectrum of violence comes into play. Assad has chemical weapons, but much of dirty his work is done hoodlums with small arms. Udoit's precious Schutzstaffel grew out of a similar brand of lightly armed thugs who were willing to do things the police wouldn't.